New CCLA Report: Police Background Checks That Include Non-Conviction Records Undermine the Presumption of Innocence

Toronto – September 17, 2012 – The Canadian Civil Liberties Association has released a new report entitledPresumption of Guilt? The Disclosure of Non-Conviction Records in Police Background Checks. The report sheds light on the impact of police background checks – which contrary to popular belief frequently disclose a wide range of “non-conviction” information, including withdrawn charges, acquittals or even complaints where charges were never laid. Non-criminal interactions, such as experiences with police due to mental health needs, are also recorded in police databases and may be disclosed on background checks. The report draws from research into retention and disclosure practices in Alberta, as well court cases and research from Ontario and across Canada. The report offers recommendations for best practices that are relevant to police forces across the country.

The report highlights the discrimination that can be faced by people who – in spite of the fact that they have never been convicted of any crime – may be refused employment, volunteer positions or travel permits due to their police record. Many individuals are not aware that this type of information is disclosed in police checks. Moreover, unlike formal criminal records, which are governed by federal legislation, procedures for removing non-conviction information from a background check are often unclear, unfair and convoluted.

“Disclosing this type of sensitive information may undermine the presumption of innocence, which is a cornerstone of a just and fair society, and a right protected by the Charter”, said Nathalie Des Rosiers, general counsel of the Canadian Civil Liberties Association. “Employers who receive negative records checks may not fully understand the distinctions between different types of police information, creating a significant risk that non-conviction records will be misconstrued as a clear indication of criminal conduct. “

“The scope of this issue is enormous,” she added. “During the G20 weekend in Toronto over a thousand individuals were arrested – many of whom were fingerprinted and photographed. Several hundred were charged with various crimes, only to have the charges withdrawn in the overwhelming majority of cases. Just last week hundreds of individuals charged following mass arrests during Quebec protests had all their charges withdrawn. These are the types of interactions that are being recorded in police databases and can show up in police background checks.”

The Canadian Civil Liberties Association was also joined by spokespersons from the John Howard Society of Ontario and the Canadian Association of Elizabeth Fry Societies. Both organizations highlighted the significant impact non-conviction records had on the lives of individuals and stressed the need to reform the practice of including non-conviction records in police background checks. Jacqueline Tasca, Policy Analyst with JHSO, said “Ontarians who have non-conviction police records deserve equal access to employment, housing, and social services without fear of discrimination or stigma. We commend CCLA for addressing this important topic in their report. The discussion around the disclosure of non-conviction information is long overdue. The time for pursuing real solutions has come.”

Kim Pate, Executive Director of the Canadian Association of Elizabeth Fry Societies added, “Many marginalized and vulnerable people, especially those with mental health issues, frequently come into contact with police. Police contact that does not relate to criminal activities that result in convictions should not be disclosed through police background checks. The risk of stigmatization and undue discrimination is too high.”

Sean Dewart, a litigation lawyer from Dewart Gleason LLP in Toronto, also released a statement: “The indiscriminate use of non-conviction records by police agencies causes significant harm. In 1996, one of our clients attempted suicide and someone called 911 to seek assistance for her. Unbeknownst to her, the Toronto Police gave this highly personal information, which had nothing to do with law enforcement or crime prevention to CPIC, which then shared it with US Homeland Security. Four years later, a border guard blocked her from visiting her family in the US because of her mental health history. There is no justification for the ever-increasing Kafkaesque use of records like this, and the dissemination of allegations that have never been proven in court, or that courts have rejected. We support the CCLA’s efforts to raise awareness about and shed light on this troubling issue.”

About the Canadian Civil Liberties Association:The Canadian Civil Liberties Association (CCLA) is a national organization founded in 1964, dedicated to promoting respect for and observance of fundamental human rights and civil liberties. Its work, which includes research, public education and advocacy, aims to defend and ensure the protection and full exercise of those rights and liberties.

About the Canadian Association of Elizabeth Fry Societies: CAEFS is an association of self-governing, community-based Elizabeth Fry Societies that work with and for women and girls in the justice system, particularly those who are, or may be, criminalized. Together, Elizabeth Fry Societies develop and advocate the beliefs, principles and positions that guide CAEFS. The association exists to ensure substantive equality in the delivery and development of services and programs through public education, research, legislative and administrative reform, regionally, nationally and internationally.

About the John Howard Society of Ontario: The John Howard Society of Ontario is an organization of citizens who accept responsibility for understanding and dealing with the problems of crime and the criminal justice system. The John Howard Society of Ontario provides support for the effective integration into the community of those in conflict with the law or criminal justice system, promotes changes in the law and administration of justice which will lead to the more humane and effective treatment of individuals. The Society also strives to promote citizen awareness of the problems of crime and its causes, and acceptance of responsibility to respond to these problems and involvement in the delivery and management of justice related programs.